Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.

The arguments would be easier for the public to understand if they had occurred in reverse? Maybe. But I think I understand them well enough to disagree the depth of that tension in this Court is irresolvable. I say that, even recognizing that the operate words in Goldstein’s statement are “in this Court.” By which he means, this Court with it’s membership.

Goldstein explains:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism [i.e., states’-rights] case. …

But if DOMA is going to be decided as a federalism case, Hollingsworth [the California Prop. 8 case] becomes a much harder case for the plaintiffs [who are challenging Prop. 8 as violative of individual rights]. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

Except that that ruling in Windsor would imply that California should have a parallel right to decide the definition of marriage for itself under the Tenth Amendment, which is the main states’ rights provision of the Constitution. Such a ruling in Windsor would say nothing at all about the Fourteenth Amendment, which is the main individual-rights provision of the Constitution vis-a-vis the states.

The Tenth Amendment does not trump or negate the Fourteenth Amendment–although I acknowledge that Kennedy and other uber-states’-rights proponents do claim sometimes that it does. Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate. But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches. And, presumably, to state voter referendums. Such as Prop. 8.

I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases. The DOMA case is a Tenth Amendment case. The Prop. 8 case is a Fourteenth Amendment case. Just as with state criminal laws, a state law may violate the Fourteenth Amendment’s due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre–criminal law, family law, marriage law, for example. The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals’ rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals’ rights.

Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments. At another point, he disagreed with the lawyer’s contention that the law simply creates a single definition for federal purposes. “It’s not really uniformity,” the justice said, because same-sex couples would not have access to federal benefits that traditional couples have.

Justice Kennedy’s point echoed one made by his more liberal colleagues.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

From what Liptak and Baker write, it sounds like Kennedy may vote to strike down DOMA as unconstitutional on equal protection grounds as well as on states-rights grounds, not just on the latter ground. So it would be a 5-4 decision on that issue, not a 4-4-1 decision in which Kennedy takes no position on the equal protection issue.

That will be important down the road, once the Court does decide to decide the issue of marriage as a constitutional right for same-sex couples, which it looks like they won’t do in the California Prop. 8 case argued yesterday.

But, for “jurisdictional” reasons, the Court might decide not to decide the constitutional issue in this case. The Washington Post’s report on today’s argument discusses the procedural issue and what transpired on it during the argument this morning. A majority could vote to dismiss the case and leave the lower appellate opinion, holding DOMA unconstitutional, intact, if the Obama administration did defend the law in that court; I don’t know whether it did or not.* I doubt that that is what will happen, though. I think a majority will say that there is a sufficient “case or controversy” between the plaintiff and the federal government, which enforced DOMA against her even though the administration is not defending the law in court, to permit the federal courts to decide this case. So, despite the House group’s lack of “standing” to be a party in the case, the Court would have jurisdiction to decide the case, as did the lower appellate court.

I explained the “standing” thing here yesterday, in the context the Prop. 8 case.

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UPDATE: Here’s SCOTUSblog’s Lyle Denniston really thorough article reporting on and explaining it all. Most interesting to me is this:

Justice Kennedy told [attorney Paul] Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

Wow. This is not just an equal-protection statement. This is even more basic. It is a substantive-due-process-rights statement. As in: There are constitutional limits to which the government–state or federal–is permitted to interfere in personal and private decisions. That was the ground on which Kennedy and the justices who joined his opinion a decade or so ago held Texas’s criminal anti-sodomy law unconstitutional.

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*The Obama administration never defended DOMA in the Windsor case, the case argued today. The plaintiff, Edie Windsor, won in the trial-level court, and then in the Second Circuit Court of Appeals. So if the Supreme Court dismisses the appeal, which was filed by a group of House Republicans, on the ground that that group lacks standing to be a party to the case at any level, that would reinstate the trial-court ruling in Windsor’s favor, but that ruling would have no precedential effect in other cases even within the Second Circuit. But, as I said above, and as Lyle Denniston says, it’s likely that the Court will say that there is an active case and controversy between Windsor and the federal government because the government did enforce DOMA against her until she filed the lawsuit and won in the lower courts.

He said it yesterday, at the argument on the constitutionality of California’s Prop. 8. He also said that the right to bear arms doesn’t, after all, preclude the federal government and the states from enacting gun-ownership restrictions as they wish, so the recent Court opinions holding otherwise were decided incorrectly. And we now know that the Court will uphold Texas’s college-admissions affirmative action law as constitutional and that Scalia will join in the opinion.

Here’s the lengthy exchange between him and Ted Olson, the lawyer for the same-sex couples who challenged the constitutionality of Prop. 8:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -­

JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it -­ JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.

MR. OLSON: Yes.

JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -­

MR. OLSON: Because the case that’s before you -­

JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?

MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.

CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?

MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this -­ marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.

JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow

civil unions?

MR. OLSON: We do, we submit that. You could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that -­ that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.

“Baker”–as in, “Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?”–refers to a 1972 case called Baker v. Nelson, which, as Linda Greenhouse explained last week in a terrific column in the New York Times, involved a challenge to the constitutionality of Minnesota’s bar to same-sex marriage was unconstitutional. Under a federal statute that was repealed in (I believe) 1986 at the specific request of William Rehnquist, the Supreme Court was required to consider all cases involving federal constitutional issues in which the immediate lower court was a state (rather than a federal) court of appeals. So in Baker, the Court summarily ruled in a pro forma single sentence without briefing, much less oral argument, that the case failed to raise a substantial question of federal law. I.e., there was no constitutional right of same-sex couples to marry.

Which leads me right into a question that I hope the Dem-appointed justices ask in their dissents in Fisher v. University of Texas, the affirmative action case argued at the Court earlier this term: When, exactly, did it became unconstitutional for a state university to consider race in its admissions process? 1791? 1868, when the Fourteenth Amendment was adopted? Some time after Bollinger v. Grutter in 2003, when although the Court did say the issue presented a substantial question of federal law, the Court also said that race was, like other criteria beside academic qualifications (such as regional demographics and such as “legatee” considerations), constitutionally permissible?

And I hope that the next time a state such as Montana enacts a stringent campaign-finance law, Scalia himself will ask the Koch brothers, or the Citizens United organization, or whoever is the named* plaintiff in the case, when exactly such laws became an unconstitutional violation of the First Amendment’s speech clause. 1791? 1868, when the Fourteenth Amendment was adopted? Was it sometime after 1912, when Montana enacted the statute that the Supreme Court last June summarily held was unconstitutional under the Citizens United opinion, which was not issued shortly after 1781 or 1868 but instead in 2010?

These are easy questions. The lawyers for the challengers of these laws should have an easy time answering them. The answer, of course, being that “originalism” can be, and is, turned on and off like a water faucet by those who subscribe to it as a legal theory when the weather is fair.

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*Oh. dear. There was a really funny typo in that sentence originally: “naked plaintiff,” instead of “named plaintiff.” I probably should have left it that way.